The Ultimate Good Bye Donald Trump But I am Not Gone Forever Songbook Blog

 

            America is a partisanly-polarized political world.

   Donald Trump personifies this divide.  Republicans like him,  and with a powerful dose of cognitive dissonance and confirmation bias believe everything he says, whether it is about the pandemic, the economic, or his claims of voter fraud that elected Joe Biden as president.  Conversely, Democrats despise him and all that he represents,  accepting uncritically the evil of him as president and the virtue their side represents.

I describe it all the time in my talks and lectures, pointing to how we live in two worlds, separate and maybe equal in how we view the world.  We are divided over where we live, the news we watch, the stores we shop at or dine at, and the cars we drive or the clothes we wear.  Everything is partisan, every culture landmark, as Walter Benjamin prophesized, would be tainted with politics.

The same is true with music. Rick and roll, Country Western, Rap, and Hip-Hop are music genres, but also inhere political orientations and as Antonio Gramsci said, are part of the mass culture war for the hearts and minds of people.  Since the November 3, election and coming soon end of the Trump presidency, music has become the new culture war.  Songs have been enlisted to herald his departure and his future.  Much in the same way that the passing of Margaret Thatcher led to revival of “Ding Dong the Wicked Witch is Dead” in England,  Rolling Stone reported on the songs that have marked Trump’s electoral defeat.

This blog is the Ultimate Good Bye Donald  Trump But I am Not Gone Forever Songbook.  Yes, Trump supporters are in denial but he did lose fair and square, despite false claims of  fraud that the   courts have rejected.

There is something here for both Trump haters and admirers.  If nothing else, just enjoy the music and think of your own additions to the list (pardon the Youtube  ads).

Hit the Road Jack, Ray Charles.

Leaving on a Jet Plane,  Peter, Paul, and Mary

The  Thrill is Gone, B.B. King

Will You still Love me Tomorrow, Carole King

Hello, I must be Going, Groucho Marx

Breaking Up is Hard to  Do, Neil Sedaka (of course the slow version)

Who do you think you are, Mr. Big Stuff, Jean Knight

So Long, Farewell, Trapp Family Singers

50 Ways to Say Good Bye, Train

Na Na Na Na Hey Hey-ey Goodbye, The Band

I Will Survive, Gloria Gaynor

On the Road Again, Willie Nelson

Take This Job and Shove It, Johnny Paycheck

I Can See Clearly Now, Johnny Nash

We’re Not Going to take it, Twisted Sister

Celebrate, Three Dog, Night.

Havin’ A Party, Southside Johnny (with Bruce)

Happy Trails, Roy Rodgers and Dale Evans

 

For Trump supporters we close  with:

Goodbye Girl, David Gates

 

And last but not least

Last Dance, Donna Summer

 

 

 

The Ethical Obligation of Trump’s Legal Team to Give Up

 Donald Trump’s efforts to litigate himself to a second term are effectively done.  Hastening the end are

two things.  One, the reality that the voter fraud claims on which  he stakes his litigation strategy are baseless.  Two,  something that every first-year law student knows, the ethical and legal obligations of  (Trump’s) attorneys not to press arguments in court which are meritless or  frivolous.   This includes Rudy Giuliani as Trump’s legal manager.

There was never much of a chance Trump would succeed in overturning the presidential election results in court.  There was a fantasy that the legacy of Bush v. Gore that led to the Supreme Court handing Florida and the 2000 presidential race to George Bush would prevail again.  Yet that case was about varying standards to ascertain voter intent in an  election in one state where the margin between George Bush and Al Gore was simply a few hundred votes.  Bush’s legal term raised legitimate constitutional questions about Equal Protection and treating different voters differently.  Winning in court in that one state gave Bush the electoral votes he needed to win the presidency.

Here Trump is raising  questions about widespread voter fraud across multiple states where Joe Biden’s margin of victory is thousands if not tens of thousands of votes.  Trump would have to overturn election results in at least three states.

The basis of Trump’s arguments is not about voter intent but assertions of voter fraud and the counting of ballots.  Claims of voter fraud have been a Donald Trump mantra for years and also the basis of a partisan dispute over voting rights since at least Bush v. Gore.  Republicans are absolutely convinced there is widespread voter fraud in America and have made it part of their political rhetoric to motivate their base  and arguably to suppress voting,.  This is true even though  they have failed to produce an iota of credible evidence that widespread voter fraud exists and that it has affected the outcome of elections.

The Supreme Court in Crawford v. Marion County, 553 U.S. 181 (2008) gave credence to the voter fraud rhetoric when it upheld an Indiana voter identification law as a means to detect and deter voter fraud, even though the State conceded there it had no recorded and provable instance of such fraud in its entire history.  The Crawford case was a facial law suit that challenged the very validity of the ID law and therefore no evidence of fraud  needed to be produced by the State to win.

Election law suits are a different matter.  To successfully claim voter fraud, throw out votes,  or overturn election results one needs evidence.  Challengers carry the burden of proof and persuasion to show fraud—mere assertions are not enough.  In state and federal courts there are clear rules of evidence that define what is admissible, with mere hearsay, speculation, or rumor not enough.

Trump’s legal team is losing in court because it is unable to meet the legal evidentiary standards to prove fraud.  The rules are not stacked against the president and judges are not corrupt.  The problem is Trump does not have a legal case.  In many ways  his law suits regarding fraud are welcome—they finally put on trial claims of voter fraud that were untested in Crawford and judges are rejecting the arguments as baseless.  So are  many Republican officials who administer elections.  This should put to rest serious claims about voter fraud.

Trump’s lawyers may recognize the baselessness of the fraud claims and in recent days several legal teams have resigned, including in Pennsylvania.  They had to, possibility because they recognized that to press them further meant they could face disciplinary sanctions. 

Rule 11 of the Federal Rules of Civil Procedure bars attorneys from filing cases which are frivolous,  lacking evidentiary support, or which are meant simply to  “harass, cause unnecessary delay, or needlessly increase the cost of litigation.”  If such litigation persists, courts may sanction attorneys.

Similarly Rule 3.1  of the Model Rules of Professional Conduct—the ethical code for lawyers—bars attorneys from bringing frivolous claims.  Every state has a version of Rule 3.1 and it imposes a sanctionable ethical obligation on attorneys that could potentially lead to disbarment.

Trump may make unfounded assertions of voter fraud and press them to the public. His attorneys cannot not.  Moreover, to the extent that Rudy Giuliani in managing Trump’s legal strategy is furthering frivolous assertions, he too could face  Rule 11 and Rule 3.1 sanctions.

Courts have been generous in letting Trump’s attorneys press their arguments and give them a hearing.  But they have failed to provide proof of fraud that will affect the outcome of the presidential election in even one state, let alone the multiple ones required to change the outcome of the election.  Attorneys’ ethical and legal obligations not to press meritless claims are now bringing a halt to the president’s legal strategy.

Can Trump Sue to Victory? The Math and Law are Beyond Unlikely

 By all accounts Joe Biden has won the US presidency.  It’s not official yet, but the math suggests he is

the president-elect.  Donald Trump refuses to concede, vowing to litigate and sue his way to victory and take his case to the Supreme Court where his three appointed Justices will deliver him a win.  This is Trump’s fantasy, as well as his supporters, and the fear of those who opposed him.  Is this scenario possible or likely?  Simply put, no–this is not Florida 2000 and Bush v Gore all over again.  Let us explore Trump’s case.

Technically Joe Biden has not yet won the presidency or any state yet.   The results in each state are not official yet.  There is a period after elections in the US where final counts are made and any errors are corrected.  This is normal.  During this period it is not unusual for small adjustments in vote counts to change.  Approximately two weeks after elections in each state a body called a canvassing board meets to certify the election results and eventually issue election certificates declaring winners.  This is when someone is officially the winner.  Up until this point candidates can make administrative challenges or recounts can occur.  Normally, only after the results have been certified can one go to court.

There are several hard date deadlines coming soon. Under federal law all disputes regarding  a state’s electoral votes need to be resolved by December 8.    This is so that if there is a challenge to them in Congress there is a presumption of validity for them.   This is the so-called safe harbor provision.  Federal law requires the electors to cast their ballots on December 14.    The Constitution requires Congress in a joint session on January 6, 2021, to certify the electoral vote count and her any challengers from members of Congress.  Finally, the Constitution says that the current term for the president expires at noon on January 20, 2021 when the new president takes overs.  Any litigation must respect these dates, with  it likely that any suits will need to be resolved by the December 8, deadline.

As on November 9, 2020, Joe Biden potentially has 279 electoral votes, nine more than the 270 needed to win the presidency.  This vote total includes Michigan (16), Nevada (6), Pennsylvania (20), and Wisconsin (10).  It does not include Arizona (11) and Georgia (16).  Biden is ahead in the latter two and likely to win both, pushing his total to 306 electoral votes.

For Trump to win he would need to then overturn 36 electoral votes, flipping at least three if not more states.

One way to do this is through a recount of votes.  Perhaps in demanding a recount in several states he can change the election outcome.  This is unlikely to succeed, especially in more than one state.  Ballot counting is highly accurate in the US, with statewide elections barely changing totals by more than a few hundred votes.  Biden’s margins of victory are sufficiently large enough in all these states that there is little chance they will change results.

The second alternative is the legal challenge route.  Individuals cannot sue in court just because they are mad.  They need to show a legal injury.  For Trump, there are several dubious legal arguments.

One, Trump will argue widespread voter fraud.  Trump has been arguing that such fraud exists for years but never has offered proof of it.  He did this before the election this year with allegations that vote by mail was rift with fraud.  He and his followers seem to insinuate that large numbers of dead, undocumented immigrants, or other persons vote.  If he has evidence of that his legal team needs to prove this in court.  So far lower courts have rejected claims of this and the evidence is overwhelming that there is no significant voter fraud of any type in America.  This belief in such is a defining legend for many Republicans.

But even if such fraud does exist, the president must prove it exists and to such an extent that  it affected the reliability and outcome of the election such that a new election is needed.  Rarely do judges order such an election because it is impossible to rerun an election, and that would especially be the case with a presidential election where there are strict time limits in place.  More likely, what Trump needs to show is that there was enough fraud that a large class of votes must be thrown out such that this number across several states will change the vote count.  This is an evidence issue and votes are not thrown out based on mere speculation or assertion.  In many cases, one needs to show  vote by vote why there is fraud.  Again, unlikely.

One argument being thrown out by Trump also is that votes received on or before election day which were cast by absentee ballot but not counted until after the election should not be counted.  The claim is that they violate the Federal Uniform Election law which requires the election to take place on a specific day (November 3, this year), and that any ballots counted after that date violate that federal law. This argument will fail.  States routinely count absentee ballots after election day.  Nothing in the federal law prohibits this.  Counting ballots received by election day are different from counting ballots received after election day and to which maybe the federal law applies, but Biden’s victory does not depend on these latter ballots.

Three, Trump has argued that his poll watchers or observers were denied access to viewing the ballot counting.  Lower courts have rejected that and upheld laws saying they must keep their distance from counters and do not have a right to lean over their shoulders.  This is to prevent intimidation.  These laws will be upheld.  But even if there is a violation here all that it will require is perhaps some recounting but it does not change the count.

Finally, Trump seems to claim some type of Bush v. Gore violation.  Bush v. Gore in 2000 was a constitutional Equal Protection violation in one state that involved the procedures for how to ascertain voter intent.  The case involved one state where the vote totals were only a few hundred apart.  The Court’s decision to halt the recount in 2000 was that it might go past the safe harbor provision.  It is hard to find a parallel Equal Protection violation here that would invoke Bush v Gore unless somehow one says that states are treating different classes of voters differently in ways that are constitutionally wrong.  This is a hard argument to make, especially across several states.  It would take a lot of legal maneuvering to get a case to the Supreme Court and it would take even more to do that to invalidate tens if not hundreds of thousands of votes across two or more states.  From a legal perspective, the chances here are impossible.

Maybe the real goal as some contend is for Trump to delay the electoral college votes from taking place in multiple states, and then throwing the election Congress as the Constitution provides.  Here is where Bush v. Gore may apply–the Supreme Court may simply do in litigation now as it did then to stop it before the December 8, safe harbor provision kicks in.  Despite fantasies and fears by  Republicans and Democrats, don’t count on congressional selection of Trump as president.

Overall, the president cannot litigate himself into a victory.  The math and law are against him.